Why Missouri is still on the brink of LGBT equality.
A.J. Bockelman does not have the luxury of exhaling. The executive director of PROMO, a Missouri-based organization that advocates for LGBT equality, is talking on his cell phone on his way back from Jefferson City. It’s a trip that he makes often. From the events that happened late last year, most may think that he has reason to rest on his laurels. A flurry of court decisions both on the state and federal level have granted more marriage rights for gay and lesbian couples. But there is no rest for Bockelman: Marriage equality in Missouri still has an asterisk.
The Legal Path to Equality
Confusion over same-sex marriage in Missouri and what marriage equality means is understandable: The Show-Me State has not had a reputation for warmth toward the LGBT community. In 2004, Missouri became one of the first states to vote for a constitutional ban on same-sex marriage, which defined marriage as a union strictly between a man and a woman. Also, the state still hasn’t enacted nondiscrimination legislation to protect LGBT Missourians in the workplace, public accommodations or housing, meaning you can still be fired, denied housing or prevented from using public facilities for being gay, lesbian, bisexual or transgender. Unlike in other states, in Missouri there is no single case or legal action that definitively grants gay and lesbian couples the right to legally be recognized as married. Instead, there have been three cases on a state level and even federal decisions that have created the current amalgamation of what “marriage” means to government.
Case 1: Barrier v. Vasterling
Last February, a case was filed by the American Civil Liberties Union of Missouri on behalf of 10 same-sex couples who were legally married outside Missouri and were seeking recognition of their married status by the state. The precedent for the suit was the Supreme Court’s ruling in United States v. Windsor: In June 2013, the court struck down the portion of DOMA in which “marriage” and “spouse” were terms that applied only to heterosexual couples. That decision is what led the Jackson County court to rule in favor of the ACLU of Missouri in October of 2014, a decision that gave legally married same-sex couples the recognition they were seeking: Missouri now honors their unions. Jeffrey Mittman, executive director of ACLU of Missouri, points out that another important decision was Missouri Attorney General Chris Koster’s decision to not appeal the ruling. At the time of the ruling, Koster’s office explained, “Our national government is founded upon principles of federalism—a system that empowers Missouri to set policy for itself but also obligates us to honor contracts entered into in other states.” After Koster’s decision, an estimated 5,000-plus couples were recognized overnight as legally married in Missouri. Now, couples that get married in one of the 37 states with legal same-sex marriage are automatically recognized in Missouri.
Case 2: The State of Missouri v. Sharon Quigley Carpenter
Last June, while the out-of-state marriage recognition case was heating up, Mayor Francis Slay committed a bold act of civil disobedience to spur the conversation at the local level. Four St. Louis couples were married in a ceremony at St. Louis City Hall. St. Louis Recorder of Deeds Sharon Quigley Carpenter issued marriage licenses to the couples, sending a strong message from the mayor’s office.
“We have created a clear, direct legal challenge to Missouri’s unconstitutional ban on marriage equality,” said Mayor Slay in a statement. “We hope to get this before the courts to settle this issue on behalf of all gay and lesbian people in our state.”
That act of moral authority versus legal process prompted Attorney General Koster, in keeping with the duties of his office, to file State of Missouri v. Sharon Quigley Carpenter. “While many people in Missouri have changed their minds regarding marriage equality, Missourians have yet to change their constitution,” said Koster.
In November, the court ruled Missouri’s marriage ban unconstitutional. As a result, marriage licenses are now being issued for same-sex couples in St. Louis City, St. Louis County and Jackson County, with an estimated 300-plus issued to date.
Case 3: Lawson v. Jackson County Department of Recorder of Deeds
In June 2014, ACLU of Missouri filed a case in Jackson County on behalf of two couples. Four months later, the judge in this case ruled that Missouri’s ban on same-sex marriage from 2004 was unconstitutional. Shortly after the decision, Koster’s office released a statement saying he will appeal the decision to the 8th Circuit Court of Appeals.
On April 29, 2015 the 8th Circuit Court of Appeals decided to delay hearing this case until the US Supreme Court makes a decision on the same issue. This means that gay and lesbian couples wishing to marry must wait to see how the Supreme Court rules on the matter, a decision expected by the end of June. The exceptions are St. Louis City and Jackson County, which, because of the outcomes of the local cases, continue to issue marriage licenses to same-sex couples, even to those who live out of state because there is no residency requirement.
The Federal Level
Interspersed into this timeline has been activity on the federal level and from other states, which brings us to the current stage of the fight.
In January, the US Supreme Court agreed to review four marriage-related cases, an extraordinary move that will require the court to issue a decision, ending the long, state-level battles. In April, the Supreme Court started hearing the split decisions from several state circuit courts regarding the question of the unconstitutionality of a ban on marriage for same-sex couples.
The Fight Continues
“The past few months have validated what we have said all along: The laws that discriminate against same-sex couples are unconstitutional,” says Bockelman. “There is more work to be done, and we will continue to see opposition to full equality.”
Bockelman and I spoke just as the Religious Freedom Restoration Act in Indiana was gaining national attention. At the time of this writing, the act allowed for individuals and private businesses to refuse service to any person based on religious beliefs. Indiana Governor Mike Pence signed the bill into law, which will go into effect July 1, 2015. The timing of the original bill makes it seem like an attempt to halt the advancement of marriage equality, but backlash led the legislature to alter the bill, removing the adverse impact it would have for LGBT individuals.
This attempt by Indiana lawmakers did not surprise Bockelman, an Indiana native, at all. Last year, Missouri lawmakers attempted to gain traction with a similar bill shortly after some of the courts ruled in favor of same-sex marriage.
“Any time there has been a major civil rights decision, the opposition always retaliates with really grand overreaches, and those rarely get the communications attention that the initial decision did,” says Bockelman. “I am sure there will be other attempts to retaliate.”
Another bill, heard by the Missouri Senate in April 2015, would exempt college-campus-based religious organizations from the university’s nondiscrimination policy, meaning college organizations at public universities would be able to exclude LGBT students while still receiving public funding.
Mittman points out that the backlash to progressive LGBT legislation has created interesting alliances in the marriage equality fight: Walmart, the NCAA, the NFL and NASCAR have issued statements imploring state leadership in Arizona, Arkansas and Indiana to reconsider standing measures that allow for discrimination of service to individuals based on sexual identity.
Bockelman points out that there is also currently a gap in terms of the state protections and responsibilities when it comes to married status. For example, there’s currently no way for a partner to draw a deceased same-sex spouse’s social security. When the US Supreme Court makes a decision about same-sex marriage, there are more than 1,100 places in the federal law where a protection or responsibility is based on marital status—and this doesn’t include state legislation. This creates a degree of uncertainty for same-sex couples as social practice lags behind the law.
But Mittman believes the continued fight for equality reaps benefits for those even outside the LGBT community. “Our communities are stronger when there are strong families, and marriages create strong community members,” he says. When people feel equal, they feel included, and they make America more vibrant.”
Over the past several months, more couples have experienced that kind of love and commitment from each other. PROMO’s Facebook page and microsite, ShowMeMarriage.org, are flooded weekly with stories and photos of marriage and families. And for so many couples, their desire to be legally recognized as married has been fulfilled. For Bockelman, the momentum and positive energy are encouraging. However, with some major milestones on the horizon, he cannot yet take a moment to pause and say that it is done. For him, creating a more equitable world is still very personal.
“I was brought up in the Catholic Church with a sense of social justice and community, and that has been my source of validation,” says Bockelman. “At the end of most days, I can say that today was a good day—and tomorrow we get up and fight again.”